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ARTICLE · 04 JULY 2022

Judge Vs. Jury: Considerations For Medical Malpractice Cases

McCague Borlack LLP
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There has been a shift in attitudes towards juries in medical malpractice cases over time.

CanadaLitigation, Mediation & Arbitration
Martin Smith
Martin Smith
Desneiges Mitchell
Desneiges Mitchell
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First presented at the 2022 Canadian Chiropractic Protective Association Legal Conference

Introduction

There has been a shift in attitudes towards juries in medical malpractice cases over time. In 1998, the America Medical Association, a professional association and lobbying group for physicians and medical students, explained their position as follows:

Juries are not optimally suited to decide the complicated issues of causation and duty of care. ...With respect to the major elements of liability - duty of care and causation - the parties must present expert testimony, which the jurors cannot evaluate independently."1

This captures the past prevailing view in Canada as well: why would a defendant want laypersons with no legal training, and likely no medical training, to decide their case? At a minimum, judges have extensive legal training and may have experience, either in their pre-judicial careers or on the bench, with these matters.

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